Sedition: courts must act where Parliament fails

In a previous column, I had argued that the Sedition Act 1948 ought to be struck down unless Parliament amends the Federal Constitution to expressly incorporate it as a permitted restriction on free speech.

As recently as in August, the prime minister himself called for this colonial-era law to be repealed to truly give meaning to Malaysia’s independence.

The fact that the remarks were made at a Merdeka event in UiTM was not lost on me. After all, his Pakatan Harapan coalition has also long championed the cause.

Despite that, to date, no action has been taken by our political leaders to fulfil this pledge.

That has kept the draconian law, which significantly curtails freedom of speech, on the statute books well past its expiry date, and still available for use against ordinary citizens.

Perhaps, our politicians have other priorities presently— or maybe they have no incentive to push the necessary bill to repeal the law. The Dewan Rakyat may be in session, but its present focus is the supply bill to fund the government for 2027.

So what recourse does the rakyat have? The attorney-general (AG), being the guardian of public interest, could move a motion in the Federal Court asking for the Act to be struck down. However, his silence thus far suggests that that item is nowhere on his agenda.

Will the Bar Council, an NGO, activists or a member of the public pick the matter up? No one knows.

Yet, as I have consistently maintained, the courts possess ample constitutional authority to move the dial given the inertia shown by our elected representatives.

In my view the jurisprudence related to oath of office and constitutional judicial power read with Article 4 is ripe enough for the legal community to bring forth strategic constitutional challenges before the relevant courts, including by inviting the court to exercise its suo motu powers.

The oath of office, which binds judges to “preserve, protect and defend” the constitutional rights of all Malaysians, imposes upon the courts a sacred duty not merely to safeguard those rights, but to actively facilitate their empowerment.

In my view, the process should involve very little red tape. Following the practice in India, a letter to the High Court or the Federal Court should be sufficient to set the wheels of justice in motion—since the judicial power invoked is exercised directly according to the oath of office and not under Article 121(1).

However, the courts should not act on its own. It should invite the AG, the Malaysian Bar, the Advocates Association of Sarawak, and the Sabah Law Society to weigh in on whether the Sedition Act can truly coexist within the constitutional supremacy regime.

No one can accuse the courts of going rogue, especially since our political leaders have already expressed publicly an intention to do the very same thing.

So, will the legal industry make an attempt?

The views expressed are those of the writer and do not necessarily reflect those of FMT.

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